Intellepedia – IP News Center
31 Aug

Privacy and Intellectual Property: Are we trying to kill the snake with a log?

The Right to Privacy is now unquestionably a constitutionally protected fundamental right. The Supreme Court’s order puts it as follows:

” … 2      The reference is disposed of in the following terms:

(i)   The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;

(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;

(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

  1. (iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.”

The Nine Judge Bench through a very long judgment ruled that the right to privacy is a basic human right, primordial right, natural right, inalienable right, and a fundamental right that differentiates mere animal existence of a human being from a dignified and meaningful one. Through its manifestations in personal privacy, informational privacy, territorial privacy, and communicational privacy through one lens, repose, sanctuary and intimate decision making through another, and physical privacy, psychological privacy  and social privacy through a different lens, among  others, privacy has been given a very broad connotation, and  the scope and extent of the right seems extremely broad and all encompassing. As per the Court, the right to privacy extends to all possible extensions of the person from his body and mind to social behavior and political choices. Expression, personality, identity, data, information, knowledge, and many other manifestations of an individual form part of the right of privacy. This un-waivable, fundamental right allows a person to prohibit, regulate, and take other actions against any actual and/or foreseeable intrusions into his privacy. , and this fundamental, constitutional right will trump any statutory right or limitation unless the high standards for making exceptions are met.

Intellectual Property and Privacy

The linkages between intellectual property and privacy, in its broadest connotation, have existed for centuries. While some of them have been codified and recognized through judgments, others may be implied and/or read into the law by extension that does not amount to extrapolation. Some examples of privacy in the intellectual property include private, secret information that qualifies as a trade secret, publicity and celebrity rights, expressions of and including persons, moral rights, performer’s rights, inventorship, and invention information, and pre-public product representations.

The facets of privacy in intellectual property laws are largely statutory or common law based, and any conflict of those rights with other rights, duties and/or limitations was normally resolved through literal, object or public interest based interpretations. In the normal course, privacy rights gave way to IP rights, rights of the public, and/or exceptions under many circumstances. They some times prevailed, but those instances reduced substantially as IP regimes leaned towards economic and public interest theories. By laying down a constitutional layer of protection, which prevails over statutes and the common law, the Supreme Court at the least has pushed privacy rights in IP to a different level. Time will tell how this will play out, but I cannot help extrapolating, and arriving at imaginative inferences.

By pointing out that the right to publicity is an integral part of the right to privacy, the Supreme Court has strengthened the rights of celebrities to control commercial exploitation of their image, identity, and persona. One of the primary sources of revenue for celebrities is commercial endorsements, and the fact that publicity rights are now fundamental rights will increase the value of their endorsements, and narrow the scope of their grants. As a matter of practice, publicity rights clauses in artist agreements and endorsement contracts are worded very broadly, and they permit the assignee/licensee to do much more than required for a particular purpose. With publicity rights gaining constitutional leverage, such clauses may no longer be valid, and must at the least meet a higher threshold of reasonableness to subsist. Conceptually, publicity rights emerge when a celebrity foregoes portions of her privacy and gives the public the right to follow her, and manifest as rights to control the public from using her privacy for commercial purposes. Do they continue to be within the scope of the fundamental right of privacy even after such an extension? The supreme court seems to think so.

Performances of performers are a facet of their persona, and the rights to control tangible expression, propagation and dissemination have been recognized as performer’s rights. Does the right to privacy as expanded by the Supreme Court include performer’s rights as well? On a general reading, one cannot say that they are not included. That gives the performer an additional layer of rights in the form of fundamental rights, which may be enforced at the highest level.

In today’s social media context, any person having a profile on Facebook may be considered as a celebrity with publicity rights, which means that the right to control the commercial use of one’s online persona is available to one and all. Information shared online by a person from photographs and videos to updates and comments are the subject matter of protection as copyrights, trade marks, and trade secrets, and most of these rights are transferred on social media platforms and online forums through electronic contracts in the form of terms of service, etc. Facebook, Twitter, LinkedIn, and other social media platforms take non-exclusive rights with respect to the said IP, and are currently free to use the same for both non-commercial and/or commercial purposes. The Supreme Court’s judgment extends privacy rights to a substantial portion of the said data/information, and mere transfer of IP rights with respect to the same may not continue to grant the freedom the platforms are enjoying now. The right to be forgotten, which forms part of the right of privacy,  may have the effect of impeding, if not invalidating, IP transfers online after the judgment. Does the Supreme Court intend to curtail the development of a different notion and standards of privacy in the online context, or is this merely an attempt to regulate it by placing the scepter in the hands of the individual?

Expressions in the form of literary, musical, and other works is an extension of the person expressing, and in the Supreme Court’s words, privacy rights extend to the expression as well. If privacy rights add an extra layer of protection to copyrights and other rights over expressions, moral rights will be positively impacted, but exercise of rights granted by the copyright law, and fair use may be limited, or impacted detrimentally. An author may be able to control how a work may, or may not be used even after his rights are exhausted or transferred on privacy grounds. For example, if my expression is an element of my privacy, and I transfer copyrights in such expression, which is made in the form of a book, and copies of the book are sold by my publisher, can I  control the distribution of my book using my privacy rights? Would it be different if I had shared the book in confidence, and the publisher releases it without my permission? Will I have an extra tool to take action in the form of violation of privacy rights? On its face, such an extension cannot be ruled out.

Even patent law may not be free from privacy incursions. Inventions are extensions of an inventor’s personality, and all data/information with respect to inventions and its transfer/disclosure may be susceptible to control under the aegis of the right to privacy. Information about patents and their exploitation may also be subject to the extensions of the right of privacy. Trade Secret law in India is creature of common law, and privacy rights may prove to be handy in an action against misappropriation of trade secrets.

The aforestated elucidations may not make legal or logical sense, but the open ended, highly enthusiastic approach of the Supreme Court may just prove to be contagious, like how my mind had traveled far and wide, and extrapolated beyond reason. The right of privacy is limitless, but not absolute as emphasized by the Supreme Court in its judgment more than once, but is it really limitless, and can it be extended to anything and everything?

Sometimes, you have to hit even a small snake with a big stick, but if we choose to pick a log instead of a stick, I cannot help wondering if the snake is dumb enough to wait for you to return.

Conclusion

The excitement, the eagerness, and the passion to protect something that is  the very essence of human  life and liberty is  amply reflected in the  words of our  learned judges, and their long, yet  illuminating thesis ratio on privacy is commendable, and they deserve nothing less than a loud applause from the nation and the world. My misgivings are glaring, and my understanding, clearly misplaced. After all, I read the full judgment only once, and might have picked portions that suit my natural inclinations and biases. One can easily dismantle the opinions in this article by reading paras from here and paras from there, and we can argue on and on in circles because the judgment has enough for all of us.

 

Image Source/Attribution here, this image is in the public domain

 

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